BANYAGA v. UNIVERSITY OF ROCHESTER

May 10, 2005.

MOIRA BANYAGA, Plaintiff,
v.
UNIVERSITY OF ROCHESTER, Defendant.

The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District

DECISION AND ORDER

In this action, plaintiff claims that while employed as a
medical resident in the Ophthalmology Department of defendant,
University of Rochester, she was subjected to a hostile work
environment and retaliated against after she complained about
what she viewed as harassment. Plaintiff claims that she was
constructively discharged on November 28, 1999. Defendant denies
the allegations.

Apparently, the parties have completed most of the necessary
discovery and dispositive motions are due in a few weeks.
Defendant has advised that it does intend to file such a motion.
No trial date has been set.

Pending before the Court is plaintiff's motion in limine to
preclude the defendant from introducing certain evidence at trial
(Dkt. #62). I deny the motion as premature without prejudice to
its renewal prior to trial.

Plaintiff recognizes that such a motion is somewhat premature,
since it is filed prior to the filing of dispostive motions and
well in advance of any trial date, but seeks a favorable ruling
now in order to obviate the need for discovery in Canada which
may prove to be time-consuming and costly. The challenged
evidence relates to a letter, dated November 18, 1999, by Dr.
Duncan Anderson, the Acting Director of the Residency Training Program,
at the University of British Columbia.

Plaintiff had been employed at that institution prior to her
association with the defendant. The letter gave a negative
assessment of plaintiff. The letter stated that plaintiff's
"clinical performance during training was satisfactory, but we
felt her ethical behavior and teamwork were somewhat lacking."
(Dkt. #62, Ex. 6). Plaintiff seeks to preclude defendant from
using that document.

First of all, it may be completely unnecessary for the Court to
determine if either the challenged letter or testimony concerning
it is relevant in the lawsuit. Defendant insists that it has no
intention of using this evidence in its motion for summary
judgment. It seems best, therefore, to resolve the soon-to-be
filed summary judgment motion first. A ruling adverse to
plaintiff would, of course, moot this present evidentiary issue.

Second, it is not entirely clear whether defendant intends to
use this letter and for what purpose. Plaintiff claims that
officials at the defendant hospital conceded that they did not
base their decisions concerning plaintiff on the letter or any
information received from the University of British Columbia.
Defendant's purpose for introducing the evidence is vague, to say
the least. It asserts that the information may pertain to
"plaintiff's credibility and qualifications." I share plaintiff's
view that there are serious evidentiary problems concerning this
evidence. The letter itself is not self-authenticating and
clearly appears to be hearsay. Defendant has not suggested any
exception to the hearsay rule. Furthermore, if the defendant did
not take the information from the University of British Columbia
into account in its dealings with plaintiff, it is hard to see
how this evidence would be relevant. It is not at all clear yet
how the evidence would be admissible under Rule 404 or 405,
Federal Rules of Evidence.

To make a definitive ruling at this time, however, would be
unfair to the parties. I do not have a complete record and
defendant has not made a full proffer as to how it intends to use
the evidence. There are certainly serious evidentiary issues, and
defendant will have the burden with regard to this matter, but the dictates of judicial economy and
the need to understand precisely the nature of defendant's
proffer require that the motion be deferred until trial.

As is often the case in complex litigation, the parties have to
make judments about the extent to which they engage in discovery.
United States Magistrate Judge Marian W. Payson has recently
issued Letters Rogatory to officials in Canada as a precursor to
commencing discovery there. It is for plaintiff to determine
whether to pursue that process.

CONCLUSION

Plaintiff's motion in limine (Dkt. #62) is denied without
prejudice.

IT IS SO ORDERED.

20050510 ...

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